Citation Nr: 18151686 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 16-35 029 DATE: November 20, 2018 ORDER New and material evidence has been received to reopen a previously denied claim of service connection for a back disability, and the application to reopen is allowed; to this extent only, the claim is granted. REMANDED Entitlement to service connection for a back disability also claimed as degenerative arthritis of the lumbar spine is remanded. Entitlement to service connection for right lower extremity peripheral neuropathy is remanded. Entitlement to service connection for left lower extremity peripheral neuropathy is remanded. Entitlement to service connection for right upper extremity peripheral neuropathy is remanded. Entitlement to service connection for left upper extremity peripheral neuropathy is remanded. Entitlement to a total rating based on individual employability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In an unappealed December 1970 rating decision, the RO denied the Veteran’s original claim for service connection for a back disability. 2. Evidence received since the final December 1970 rating decision is new and material, and raises a reasonable possibility of substantiating the claims of service connection for a back disability. CONCLUSIONS OF LAW 1. The December 1970 rating decision denying service connection for a back disability is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.105(a), 20.302, 20.1103 (2017). 2. The additional evidence received since the December 1970 rating decision is new and material, and the claim of service connection for a back disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1969 to September 1970. In a November 2018 correspondence, in response to the Board’s inquiry, the Veteran specifically indicated that he does not waive RO consideration for relevant VA-generated medical evidence associated with the claims file subsequent to the July 2016 statement of the case (SOC). Under this circumstance, the Board will remand this matter for AOJ consideration of the additional evidence received in the first instance and issuance of a supplemental statement of the case (SSOC) reflecting any further action required and consideration of that evidence. See 38 C.F.R. §§ 19.31(a), 19.37(a). Moreover, as the Board is reopening and remanding the underlying claim for service connection for a back disability for further development, the RO will have the opportunity to review the records on remand. Thus, the Board finds that there is no prejudice in proceeding with consideration of the new and material evidence claim prior to remanding the claim. 38 C.F.R §§ 19.9, 20.1304(c). New and Material Evidence Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a NOD with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302 (2017). If the Board issues a decision on appeal, confirming the RO’s decision, then the Board’s decision subsumes the RO’s decision on the same issue at hand. 38 C.F.R. § 20.1104. Moreover, if the Board’s decision is not timely appealed, then it, too, is final and binding based on the evidence then of record. 38 C.F.R. § 20.1100. An exception to the finality rule is found in 38 U.S.C. § 5108, which provides that, if new and material evidence is received with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented. Anglin v. West, 203 F.3d 1343, 1347 (2000). In deciding whether new and material evidence has been received, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Here, the RO denied the Veteran’s service connection claim for a back disability in a December 1970 rating decision, finding that the Veteran’s in-service treatment was for acute and transitory condition and that there was no evidence of a current disability post-service. The evidence considered at the time included the Veteran’s original application for compensation, his service treatment records, and a November 1970 VA examination report. The Veteran did not appeal the decision, and new and material evidence was not received within one year of the decision. Thus, the December 1970 rating decision became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Relevant evidence received since the December 1970 denial of the claim, includes the Veteran’s September 2014 petition to reopen, lay assertions reporting back pain since service, evidence of diagnosis of lumbar spine strain and arthritis of the lumbar spine, and VA and private treatment records. This evidence, specifically medical evidence of current diagnoses lumbar strain and arthritis of the lumbar spine, along with the Veteran’s competent lay reports of back pain since service, relates to the unestablished element of a current disability and nexus in the prior denial. The additional evidence received since the December 1970 final denial is therefore new and material, and the criteria for reopening the claim for service connection for a back disability are therefore met. REASONS FOR REMAND As aforementioned, a remand is necessary for the RO to conduct any additional development deemed necessary and readjudicate the Veteran’s claims on appeal in a SSOC. The matters are REMANDED for the following action: Readjudicate the issue on appeal in a SSOC considering all evidence associated with the claims file since the July 2016 SOC. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel